The Supreme Court of Canada heard three of the five scheduled copyright cases yesterday in the first day of an unprecedented focus on copyright at Canada’s highest court. The hearing drew many of Canada’s top copyright lawyers and featured a court that was highly engaged in the morning session but content to allow the lawyers to make their case with scant interruption in the afternoon. The three cases involved the Entertainment Software Association of Canada (whether downloading a video game involves communication to the public of the music in the game), the large telcos (music downloads), and Bell v. SOCAN (song previews as fair dealing).

There were several notable developments and lines of questioning. First, the fair dealing discussion that dominated the Bell v. SOCAN case would be familiar to anyone who has followed the debate on Bill C-11 as the usual suspects trotted out the usual scare tactics. The arguments included SOCAN likening music previews to ice cream samples (and therefore not worthy of being treated as research for fair dealing purposes), CRIA arguing for a “circumscribed definition of fair dealing”, and CSI claiming that including consumer research within fair dealing could put Canada offside its international obligations.

None of these arguments gained any real traction with the court.

The ice cream analogy, which didn’t work on multiple levels, generated smirks among the judges, who could scarcely believe that it made an encore appearance at rebuttal. CRIA’s claims that fair dealing could allow for unlimited copying was quickly rejected by Justice Abella, who reminded counsel of the six factor test that must still be applied to determine if a dealing is in fact fair. As for CSI’s arguments on the Berne three-step test, their lawyer was forced to admit that no country had complained about the Canadian approach and no international group had sought leave to intervene in the case. In fact, the court seemed very comfortable with the CCH approach that involves a broad and liberal approach, noting that any fairness claims must still be tested by the six factor test. By the end of the afternoon, Apple and the telcos had further demolished claims the approach is inconsistent with international law and a steady stream of intervenors reminded the court of the dangers of restricting fair dealing further. The general consensus was that this was a complete slam dunk win for fair dealing.

The earlier cases involving video and music downloads was somewhat odd in that Bill C-11 will address the issue through a new making available right, yet no one wanted to raise that fact. Instead, there was considerable back and forth on statutory interpretation issues of the meaning of “communication” and “to the public.” The argument that seemed to generate the most support from the court was the ESAC’s concern that payment for the music on a video game download would create a two-tier approach with payments for downloaded games but no payment if the same game is purchased in a store. Justice Moldaver described it as a “tax on technology” (the language used by Canadian Heritage James Moore in relation to private copying levies) and wondered why Parliament would want to put a damper on the Internet.

The case also featured discussion on how services like song previews or downloadable video games provide revenues for both music creators and the companies that sell the products. Several judges seemed genuinely puzzled at why groups like SOCAN would insist that they were losing revenues by not being compensated for song previews when the previews were helping to generate increased sales. For the copyright community, the answer is obvious – all rights should be compensated. For the court (and likely for many in the public), this situation often feels like double compensation that makes little sense.

The hearings continue today with another big fair dealing case involving Access Copyright and copying in K – 12 schools. While the song previews case focused on the categories of fair dealing and the seeming reluctance of the court to adopt a narrow approach to those categories, the Access Copyright case is likely to generate considerable discussion on the application of the six factor test and the notion of users’ rights.

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Seems Good So FarI’m actually glad to see that the court seems to be siding with logic over greed.

Previews are there to help the consumer decide if they want to purchase. If you put a price on the preview, the preview is obsolete.

Paying for the music in video games? Just stop before you make yourselves look even more foolish. I won’t even go into a long winded explanation and just quote “For the court (and likely for many in the public), this situation often feels like double compensation that makes little sense.”

…“The argument that seemed to generate the most support from the court was the ESAC’s concern that payment for the music on a video game download would create a two-tier approach with payments for downloaded games but no payment if the same game is purchased in a store. Justice Moldaver described it as a “tax on technology” (the language used by Canadian Heritage James Moore in relation to private copying levies) and wondered why Parliament would want to put a damper on the Internet.”

Isn’t this was C-11 is all about?? The very same legislation ESAC is strongly advocating…creating a 2-teir technology-specific set of rights? Seems like the pot is calling the kettle black here.

Seriously>whether downloading a video game involves communication to the public of the music in the game

You know what I rarely use to download music (even when napster came out) or movies and if I did it was stuff I already had on cd and dvd’s but the bs statements like the one above is why this year I stop giving a fuck and just download to my hearts content and I tell my kids (13 and 16) to download everything for free.

In game music is between the game developer and the music rights holder not the consumer. Not our fault you couldn’t negotiate a contract for you music with the game developer.

It’s my own position, however, that downloading content known to be infringing on copyright could be likened with respect to copyright infringement as intentionally buying property where the buyer ought to have known it was likely to be stolen is with respect to the crime of stealing.

I am not suggesting that copyright infringement is theft… I am only suggesting that intentionally downloading something that a person could reasonably have realized was infringing ought too be treated the same way, at least with respect to the actual act of copyright infringement itself, as how intentionally buying property when one has reasonable cause to suspect it was stolen is treated in relation to the act of stealing in the first place, which at the very least is that the receiver can claim no legal right whatsoever to the property, and is out of pocket for any expenses they may have incurred, and at worst, any claim of ignorance, on its status, even if truthful, might be rendered highly dubious.

@MarkLet me see… number of vinyl 33rpm records that entered in the public domain: 0. Number of Audio CDs that entered in the public domain: 0. Number of DVD-Audio discs that entered in the public domain: 0. Number of SuperAudio-CDs that entered in the public domain: 0.

Trans-Pacific Partnership (and the Europeans have been pressuring too) is likely to raise, unless the s*** is finally going to hit the fan with the general public, the copyright term from 50-years-after-the-poor-artist-DIED to 70 years ppa. So yea… reasonably you can assume EVERYTHING to be copyrighted.

Regarding the music previews; should they lose, all they have to do is charge people for the previews (a penny or two?) and make sure it’s all carefully explained and as much SOCAN contact information as possible.

Great video IamME.An artist & writer saying the same things we have been all along. Let me count the ways …

– A copy is NOT a lost sale
– Those who sample by ‘pirating’ are often the most prolific of purchasers
– Loss of distribution control to the source is the fear that drives corporate copyright
– Creators benefit more from having their materials out in the ether than the content (copyright) holders lose
– Online behavior is just a reflection of how people share in the real world (ever lend a book or tape?)
– Further, though not completely analogous, if similar measures of punishment were enacted in the physical world as is attempted the digital would it not seem ridiculous ($25,000 fine for lending that book to your mother)?
– Old business models will not survive, and even now are supported by momentum and moneyed lobbying which is unsustainable
– Copyright can adapt to the world’s new digital realities, even as it did radio, TV and the VCR. All initially seen as a threat to the incumbents, but were instead drivers of wealth and and progress.
– Resistance is futile 😉

Funny thing about that Neil Gaiman video. “American Gods” is NOT available free on the web (not legally, anyway). It was, briefly, which is a marketing strategy many publisher use. It does not excuse piracy, and was never intended to do so.

You can read the first chapter of “American Gods” on Mr. Gaiman’s website. It is followed immediately by this declaration:

It’s all very well and good to spout the standard free culture platitudes to get everyone onside, but when someone actually wants to make a living from a content business, they tend to use copyright in very traditional ways.

You will remember that HarperCollins made news by demanding that libraries repurchase e-books rights after 26 or so lendings.

…“Funny thing about that Neil Gaiman video. “American Gods” is NOT available free on the web (not legally, anyway). It was, briefly, which is a marketing strategy many publisher use. It does not excuse piracy, and was never intended to do so.”

What’s funny or strange about that? He explicitly said in the video that it was an experiment and only for month. There was never an expectation or intent that it would be free forever, so I don’t know what you’re getting at.

I own American Gods, in fact, my edition is signed by Gaiman. I own almost everything he has ever written/published/collaborated on or has had some sort of involvement with with the exception of some very rare and uber-expensive Hill House limited editions and the Ultimate Sandman/Death stuff. Why? Because in 1992, I bought a single random issue of Sandman second-hand out of a bargain bin for $1…and have since spent thousands more on Gaiman alone and have his “Making a Chair” broadside hanging in my office.

Harper Collins is a separate entity from Neil Gaiman and just because they’re his publisher doesn’t mean they share ideologies. You’d do well to remember that.

It may be counter-intuitive, but it’s a fact that “free” generates sales. Tease me, tempt me, get me hooked then I’ll be compelled to buy. The comic industry has FCBD (“Free Comic Book Day”), it’s the industry’s premier advertizing event of the year, second only to MAYBE the San Diego Comic Convention. They start preparing months in advance, bring in special writers/artists and often waiting for the event to introduce new titles. Those special editions are all free, and yes, only for the day. The event, which is in about it’s 10th year, has helped revive the comic industry which was suffering from waning sales in the late 90’s – early 2000’s. This was due to a number of reasons including a watered down market (Too many publishers taking a piece of the pie), ballooning prices, limited talent and a generally stagnant genre.

These days, that $1 could just as easily have been a random download. Take the “Crossed” series by Garth Ennis and David Lapham, for instance. It’s extremely violent, graphic and sometimes even depraved and many stores won’t even stock it, so even buying it is difficult. You don’t want the little one reading this or even looking at it. US mail-order from the source was really my only option for real consistency, but that comes with a substantial shipping charge making the books somewhat more expensive than cover price. So, I downloaded a copy to see if it’s something I’d be in to. I loved it and have since spent over $200 acquiring the series. Now Crossed has a $3.99US cover price and you can argue that that download was a “lost sale”, but was it? Call it theft, call it piracy, call it what you want, but that fact of the matter is that ,if I didn’t download that issue, I would not have bought it to begin with and I would not have spent that $200+. What is the preferable situation here? What do you thing Garth Ennis or David Lapham would think? Buying a comic book blindly is not an option. Unlike novels, the physicalities of what’s inside matter. Poor art or poorly designed framing, bad flow are all considerations that can ruin a book before you ever get to the story.

Another good example is Freak Angels by Warren Ellis. The entire series is available freely on-line at freakangels.com and was originally released as a weekly web-comic serial. These have since been collected in to trade paper backs and have consistently been big sellers for Avatar Publishing. Why would people buy it when it’s legally free on-line? hmmm, maybe there is some to this free thing. While I did not buy Freak Angels, opting to read the web version, I have spent a good chunk of change acquiring many other Warren Ellis books. Again…because of a freebie. I may not have even heard of him otherwise. Comic Cavalcade in Illinois is Avatar’s official on-line seller. See here various imprints of Freak Angels holds 4 of the top 10 best selling positions. http://www.comcav.com/cart/

There is a difference between a rightsholder’s freebie and piracy. Gaiman and various free-culturists may choose to not see the difference, but Gaiman’s publisher is very well aware of it, much to their authors’ benefit (regardless of “ideologies”).

Free Culturist?Gaiman…a free culturist?!?!?! You’re joking right? Don’t make me laugh. I have seen very few authors who print and reprint books in special edition after special edition. At $400usd for the Hill House edition of American Gods or I think you could get American Gods and Anansi Boys together for $600usd. This is far from free. The Biting Dog editions of “Murder Mysteries” and “Snow, Apples, Glass” started at $100usd, or you could get the really limited ones for $250usd. The Ultimate Sandman/Death edition are $125CAD EACH and if you want want the entire set that’s 5 very large books. And those aren’t even signed and/or limited. $625usd…that’s almost free isn’t it? Granted he doesn’t own the publishing rights to Sandman, but does retain creative control. There are many other such examples. He’s a prolific “special edition” lover.

So John, Gaiman is far from a free culturist and unlike many authors he actually controls most of his own copyrights…at least for the post-Sandman work, which is why he can do all these weird special editions. He will charge what he thinks he can get.

Gaiman is one of the most respected writers of our time who actually happens to also understand how the marketplace functions. With a wife and two kids to support, he has no more desire to work for free than I do.

In embracing technology and exploring alternative business models doesn’t he position himself better for future growth rather than relying on business models that are older than our copyright law? Sure, the industry complains copyright law is so out-dated, but on the other hand that haven’t had to substantially change their core business models in many decades.

For exploring alternatives you try to diminish his efforts and insult him by calling him a “free-culturist” (By which you, of course, mean “pirate advocate”)…it makes you sound small. I simply call him intelligent.

John, you are narrow-minded little man who can’t even respect the opinion of one in your own industry, one who was nominated for Time Magazine’s top 100 influential people of 2010 and truly a writer’s advocate…I feel sorry for you.

Being a “special edition” lover and being what John refers to as a “free-culturist” are not necessarily mutually exclusive. In fact I would say they are complimentary.

People who embrace the technology and acknowledge the futility of trying to control how people use works they have bought, also tend to realize that the true limited resource (and therefore the item of real commercial value), is the author. Doctorow knows this and capitalizes on it though speaking engagements, and Gaiman appears to know it too by selling limited editions.

@Degen

Yes John, there is a difference between writer freebes and piracy. The difference is control, and of course the cost of ensuring that copyright holders keep that control exclusively. It has already been demonstrated many times now that the cost of piracy is either very close to nil, or is a net benefit, whereas the cost of fighting piracy is very high indeed. I would not object to the price as long as it was the ones who benefit, (or think they do) who paid for it. Unfortunately it is everyone else who increasingly are the ones having to cover the bill for this. From DRM on our hardware, to increased policing, to soon ISP spying, the rest of us are paying the bill so that you can have a choice. And of course reap all the rewards, either way.

BTW, the kids are all getting Kobos for Xmas, and I’ve found that Kobos integrate nicely with “Calibre” open source software for managing ebooks. Calibre has a nice interface which allows you to buy ebooks from any number of vendors as well as finding free PD books, and there is a wonderful plugin which automatically strips the DRM for you. (If you can actually bring yourself to purchase something with DRM) It will also tell you what vendors are selling with DRM and what ones are not. Happily my favorite publisher (O’Reilly) does not use any DRM, and I expect most of my ebooks will be bought from them. The kids books on the other hand I don’t have the same high hopes for, and while I may give in and buy the occasional DRM’d book, more than likely if I can’t find a non-DRM seller through Calibre, then my next stop will be the pirate bay, or some other nefarious site on the Internet. I will certainly go out of my way to NOT support the DRM industry.

@Darryl“People who embrace the technology and acknowledge the futility of trying to control how people use works they have bought, also tend to realize that the true limited resource (and therefore the item of real commercial value), is the author. Doctorow knows this and capitalizes on it though speaking engagements, and Gaiman appears to know it too by selling limited editions.”

So true. Like Doctorow, Gaiman also does an enormous amount of self promotion through traveling and speaking engagements. He’s done live webcasts where anyone from anywhere could log in and participate. When he travels, he maintains a daily blog so people can follow his travels and see what he’s experiencing. He typically shares stories about people he meets and interesting events along the way or he might post a progress update for a book he’s working on. He makes an incredible effort to reach out an engage his fans. It keep them interested…keeps them hungry. He’s extremely active on twitter and according to Time Magazine has more followers than any author with over 1.5 million followers.

All in all, in really, it’s this sort of self promotion and embrace of technology that truly drives the success of those such as Doctorow and Gaiman. Gaiman has also found a niche in limited special editions to supplement regular sales and he has enough of a fan base to pull it off. So all the power to him and I’ll buy all those items I deem worth my money. 🙂

Both before Finn Harvor’s comment. Shockingly neither have been released. Johnny-boy…could it be that you’re a hypocrite? You claim to be a better man than Dr. Geist, yet you don’t allow open discussion on your own board. What…are you afraid of criticism? What a joke!! LOL

Tehe. Well anonymous, it did take Degen many years to realize that most who strongly oppose his perspective were in fact both sincere and strong in their convictions, and that their opinions would not be easily swayed by his sophistry. His final response to this what not to engage in the earnest debate you might hope, but rather to shut out all dissenting debate from his website.

Sadly this leaves Geist’s website as the sole establishment where one can feel free to express ones own dissension without fear of censorship by the site owner. It is rather ironic considering Degen’s self promotion as a free-speech anti-censorship advocate.